4 - Arguments In Favor
and Against .08 per se

This section presents the most commonly used arguments against .08 per se legislation in the six states that were studied, as well as counter-arguments used by supporters of the measure, as reported to project staff.

Perhaps the most common argument heard from the alcohol industry and defense attorneys was that .08 per se legislation "criminalizes social drinking." Opponents emphasized to the public that under the proposed law they could be subject to arrest, fines and even jail when their only "crime" was to drive home after having a few drinks at the local tavern.

Particularly controversial was the opposition's claim that, according to NHTSA's own literature, a 120-pound woman would reach .08 BAC after consuming two glasses of wine over a two-hour period. This claim appeared frequently in the ABI's literature as well as their web site. NHTSA responded to this claim in a May 1997 letter to the General Counsel of the American Beverage Institute. The following is an excerpt from that letter:

"According to research conducted by the National Highway Traffic Safety Administration and reported in our October 1992 Report to Congress on Alcohol Limits (DOT HS 807 879) and in a Traffic Tech (no. 80, November 1994), a 120-pound female who was a moderate drinker with an average metabolism would have a BAC of .04 after consuming 2 drinks in a two-hour period. That same female would probably reach .08 BAC after 3 drinks in a two-hour period."

The letter concluded that the ABI was not using NHTSA's materials properly when it calculated the BAC for a 120-pound woman who had two drinks in a two hour period.

At a press conference in Texas, the media was encouraged to conduct their own research and see for themselves whether or not the ABI's claims were true. Reporters recruited a 120-pound female state worker, and administered her a breath test after she drank two glasses of wine over a two hour-period. Her BAC was not even close to .08. The news story that night concluded that the ABI's claims were "exaggerated," thus damaging the Institute's credibility. Following this event, MADD mobilized quickly and made sure that each member of the state legislature had a tape and a transcript of that story.

As in Texas, other states countered the "social drinker" argument by demonstrating how much alcohol is really necessary to reach .08 per se. Legislators and the public seldom had a clear understanding of how much alcohol a person needs to consume in order to reach the limit. Charts and BAC estimators provided by NHTSA and state traffic safety agencies were supplemented with actual measurements, as opposed to mere "estimates." In some states, legislators were invited to find out for themselves how their driving performance would be affected at .08 per se through a controlled "drunk driving test." Legislators were given controlled amounts of alcohol and had their BAC levels recorded. Then they drove in a closed area, controlled and monitored by the police. In another state, legislators were provided flyers with BAC measurements of their own state police force who participated in similar tests. (For more details on these activities, see Chapter 5.) Reportedly, most legislators were surprised at how much alcohol was in fact needed to reach an .08 BAC.

Occasionally, advocates of .08 per se argued that "social drinking" is a matter of definition. According to NHTSA's estimates, it takes an average 170-pound male more than 4 drinks to reach .08 BAC. Even if one considers this drinking behavior to be "social," they argued, it does not disprove the fact that a male who consumes 4 or 5 beers in one hour on an empty stomach is too impaired to be operating a motor vehicle.

Another argument proffered is that rather than the "social drinker," the real root of the DWI issue is the "problem drinker." Opponents of .08 per se emphasized that the average driver arrested for DWI registers a BAC of .15 or above. Consequently, they argued, an illegal limit of .08 BAC is no more of a deterrent to the average drunk driver than the current .10 BAC limit. Under .08 per se, chronic drunk drivers would continue to flaunt the law and risk the lives of others. To reduce drunk driving, the legislature should instead target the "real" problem – high-BAC offenders.

In one state, the .08 movement decided to surprise the opposition by concurring with them on this point: yes, drivers with high BAC levels are indeed the most dangerous type of drunk driver, and strong legislation should be enacted to target this group. However, the state should have legislation to cover all levels of impaired driving, and .08 per se really aims to change the drinking and driving behavior of the average citizen, not the "problem drinker." Reportedly, this strategy worked well to disarm the opposition as far as the "problem drinker" argument was concerned.

In general, advocates of .08 per se agreed that tougher laws may be needed to target high-BAC drivers and repeat offenders. It is their belief, however, that the need for additional legislation of this type does not eliminate the need for .08 per se laws. Supporters of the measure presented examples of tragic crashes committed not by a "problem drinker" but by a first-time DWI offender who registered a BAC of .08 or .09. Some advocates also quoted one study's conclusion (see page 27) that .08 BAC laws serve not only to reduce the overall incidence of alcohol-related traffic fatalities, but also to reduce fatalities at the higher BAC levels. However, given that the methodology used in this particular study has been put into question by opponents, advocates in other states often consciously refrained from using this as a counter-argument.

In many states, the hospitality industry expressed the concern that a .08 per se law would have a detrimental effect on the state's economy: taverns, restaurants and other alcohol serving establishments may go out of business, sending more workers into the unemployment ranks.

In the six states that were studied, no concrete evidence was ever submitted by the opposition to support the argument that .08 per se would adversely affect the economy, and no statistics were presented to prove that alcohol consumption in states with .08 per se laws had decreased dramatically since the enactment of the law. In fact, the .08 movement was able to counter this argument by presenting statistics purporting that in California there had been no significant change in the number of drinking establishments, or in the number of employees in these establishments, since the states' passage of .08 per se.

It should be noted that recent studies have examined the question of whether .08 laws work to reduce per capita consumption of alcohol. For example, Voas and Tippetts found some evidence that per capita consumption has in fact experienced a slight decline in states following passage of .08 legislation.20 Although this particular finding was not used in the debates that took place in the states used for this project, the argument is certain to appear in future legislative discussions.

Some law enforcement agencies, prosecutors, district attorneys, as well as city and county government officials were concerned that a .08 per se law would translate into an overwhelming increase in the number of DWI arrests, thus putting enormous pressure on the limited resources of the police departments, the courts and the jails.

As mentioned in the previous chapter, law enforcement and prosecutors were, in fact, greatly divided over the .08 issue. It was relatively easy for both supporters and opponents of .08 per se to find police officers and prosecutors to testify or make public statements in support of their respective positions. In one study site, advocates felt the opposition had done a good job to create among legislators and the public the impression that law enforcement in the state was opposed to the measure, even though the sheriffs' association, the state patrol troopers' association, and the chiefs of police association, had all officially signed on as supporters of the bill and members of the coalition.

Some law enforcement officials and district attorneys who testified at committee hearings in favor of .08 per se stressed that the legislation should be passed on its own merits. In their view, the potential impact on resources should not be a primary consideration when it was clear that the public supported the measure as a weapon to deter drunk drivers. And supporters of .08 per se also emphasized that the purpose of the legislation was not to increase the number of DWI arrests, but to deter impaired driving. Under current laws, police officers need to observe certain types of erratic driving behavior before they have probable cause to stop a vehicle. Lowering the illegal limit does not change this requirement. Accordingly, unless there was an increase in the number of police officers patrolling the streets for drunk drivers, the impact of the new law on the number of arrests should be minimal.

More likely, it was argued, the state should see an increase in the number of successful DWI prosecutions. Allegedly, under current .10 per se laws, many "marginal" cases (individuals who exhibit visible signs of intoxication or impairment at the time of arrest, but register .08 - .10 in chemical tests) are regularly dismissed due to the tactics employed by defense attorneys to question the accuracy of the instrumentation, or the training of the police officer who made the arrest. Under .08 per se, police officers would spend less time in the courtroom defending their arrest procedures, and the above "marginal" cases would not be as easily dismissed by judges.

Some supporters of the measure quoted the findings from a study in California, where the main impact on the court system was an increase in the certainty of prosecution for DWI at lower alcohol concentration levels.21 The study found no significant increase in jail overcrowding, or in the number of convictions, or in the number of appeals, or in the number of offenders pleading guilty versus requesting jury trials. Though it was not yet available for any of the states in this study to use, it should be noted that a more recent NHTSA-sponsored study on the effectiveness of the Illinois .08 per se law also examined the impact of the measure on that State's law enforcement agencies, and did not find significant changes in their operations as a result of the change in the BAC level, despite the fact that statewide DUI arrests increased by 11%.22

In one state, legislators made provisions to cover additional expenses incurred by local communities (e.g., increased law enforcement costs or more jail space) if such expenses were proven to be related to lowering the illegal BAC limit.

Several grants, including ones from the National Institute on Alcohol Abuse and the U.S. Centers for Disease Control and Prevention

KS, NC, FL, NM, NH, VA

During the 2000 legislative sessions in Maryland and Minnesota, opponents of the measure made reference to a September 1999 report of the General Accounting Office (GAO), the investigative arm of Congress. The conclusion of this report begins as follows: "Overall, the evidence does not conclusively establish that .08 BAC laws, by themselves, result in reductions in the number and severity of alcohol-related crashes." Opponents sometimes referred to the GAO report as a "study on the effectiveness of .08 laws." Advocates of .08 per se have pointed out that the authors did not engage in any original research. The GAO simply performed a review of existing literature; thus the document is a "report" not a "study." Moreover, the authors of the report acknowledge that they did not review any of the medical evidence associated with the .08 issue: "Because we were directed to review the impact of .08 BAC laws on the number and severity of crashes involving alcohol, we did not review the medical evidence on impairment or other arguments in favor of or in opposition to .08 BAC laws."

Advocates of .08 per se also noted that the GAO report concludes that the effect of .08 BAC laws, by themselves, to reduce alcohol-related crashes has not been conclusively established. The report goes on to say that there are "strong indications that .08 BAC laws in combination with other drunk driving laws (particularly license revocation laws), sustained public education and information efforts, and vigorous and consistent enforcement can save lives." It was argued that NHTSA and other advocates of .08 per se have always maintained that, in order to reduce the incidence of impaired driving, states need a combination of strong legislation, effective public education programs, and active law enforcement. Supporters claim that the GAO report is simply re-stating something the .08 movement has always known -- that any reductions in alcohol-related crashes should be credited not to .08 BAC laws exclusively, but rather to a combination of measures.

Apart from the GAO report, perhaps the most frequently quoted study of the effectiveness of .08 per se was the one written by Dr. Ralph Hingson and two other researchers from Boston University's School of Public Health. The results of their study appeared in the September 1996 issue of the American Journal of Public Health. Hingson compared the first five states to lower their illegal BAC limits to .08 (CA, ME, OR, UT and VT) with five states that retained the .10 limit. Hingson and his colleagues found a 16% greater decline in the proportion of alcohol-related fatalities among drivers in the states adopting the lower limit, and concluded that if all states adopted .08 BAC laws, 500 to 600 fewer fatal crashes would occur annually. Another significant finding of this study was that, not only did the .08 BAC laws serve to reduce the overall incidence of alcohol fatalities, but they also worked to reduce fatalities at the higher BAC levels.

Critics of .08 per se argued that this study was methodologically unsound. States are difficult to compare with one another because conditions are rarely the same. For example, in two states that were paired as "test" and "control" sites for Hingson's study, one state allowed sobriety checkpoints and the other one did not. Once again, critics questioned how the reduction in fatalities could be credited to .08 BAC laws when, in three of the five .08 states used in Hingson's study, administrative license revocation (ALR) laws went into effect within six months of the .08 BAC laws, if not concurrently. Hingson's use of Texas as the control site for California, and his pairing of .08 states with so-called "nearby sites" has also been the subject of much criticism.

Legislators seemed to rely heavily on the testimony of supporters and opponents as to the findings and the methodology of studies concerning the effectiveness of .08 per se. Besides discrediting the existing reports as being flawed and inconclusive, opponents of .08 per se often presented legislators with statistics of their own. For example, in some instances statistics were used to show that, when compared to states that had enacted the .08 BAC limit, the state considering the law had fewer alcohol-related fatalities per capita, despite the higher BAC limit. Such statistical data was often easier for legislators to comprehend than the more complex statistical reports mentioned above. It was a bigger challenge for supporters of .08 per se to explain in a concise and clear manner the findings and the methodology of the research. Some of our contacts warned that this "numbers game" is difficult to win, and it is best for advocates of .08 per se to avoid debates that focus on figures and statistics. Instead, they argued, the movement should focus on the human and emotional aspects of the debate.

Opponents argued that .08 BAC laws are unnecessary. There are state laws already in place to deter and punish drunk drivers, even at the lower-BAC levels. If existing laws are not effective, it is because enforcement is weak and inconsistent. They argued that efforts to deter drunk drivers should focus on stronger law enforcement, rather than per se limits.

In several states, advocates of .08 per se conceded that stronger enforcement of current laws may indeed be necessary. They argued that .08 BAC laws are not meant to displace but rather support existing legislative measures. As mentioned previously, supporters of .08 per se said they have always maintained that, in order to reduce the incidence of impaired driving, states need a combination of effective laws, strong enforcement, and highly-visible public information and education.

In particular, the opposition in some states argued that police were already empowered to arrest and charge a driver with DWI if the individual exhibited visible signs of intoxication or impairment at the time of arrest, regardless of the BAC of the driver on a breath test. In response to this argument, advocates maintained that drivers who are impaired by alcohol may not clearly exhibit visible outward signs of drunkenness. And, as stated previously in this report, DWI charges were sometimes dismissed when defense attorneys questioned the training of the police officers. The enactment of .08 BAC as the illegal limit, it was argued, would provide law enforcement and the court system with a scientific standard against which to measure the level of impairment.

Other state legislation also presented obstacles to passage of .08 per se when the opposition argued that existing laws were sufficient to address the problem. Several states, including one of the sites used in this study, make a legal distinction between "driving while intoxicated" and "driving under the influence." Concurrent with the .10 BAC per se limit, these states have established a lower BAC level (for example, .07 BAC) at which the breath test results are considered
prima facie evidence that the driver is under the influence of alcohol. However, individuals convicted of driving under the influence of alcohol experience fewer and less severe penalties than those convicted of driving while intoxicated. Opponents in one of the states studied successfully argued that this statute eliminates the need to enact a .08 per se law, since the state already has legislation to target and punish individuals who operate a vehicle at levels above .07 BAC.

Opponents of the measure claimed that .08 per se was only the first step in an attempt to eventually lower the illegal limit of drivers to .00 BAC. The ABI sometimes referred to the .08 movement as "the new prohibition."

Advocates had a difficult time countering this argument. Several politicians, legislators and at least one Governor have publicly endorsed illegal limits of .05 BAC or lower. The American Medical Association has also publicly supported .05 BAC as the illegal limit. State BAC limits have been gradually lowered over the course of time, and supporters were not able to make assurances that in the future, lower BAC limits would not be sought.

NHTSA has officially indicated that, based on the scientific literature currently available, .08 BAC is a reasonable point at which to set the limit, and that the agency is not interested in pursuing a lower limit. However, opponents have countered that this is no guarantee, as it is always possible that new research findings may lead to a revision of the agency's position in the future.

While they could not make assurances that in the future lower BAC limits will not be sought, advocates of .08 per se did successfully emphasize that, contrary to the ABI's claims, no one is interested in bringing about "the new prohibition." They stressed that the .08 movement was not trying to limit the consumption of alcohol. The goal of illegal BAC limits for adults was not to restrict individuals from drinking alcohol; rather, advocates argued, these limits exist to prevent individuals from operating a motor vehicle while intoxicated, putting their own lives and the lives of others at risk.

In some states, there was a concern that .08 per se would unfairly affect the blue-collar worker who stops at the local tavern after work to have a few beers. More affluent folks who could afford to pay for cab service on a regular basis, or maintain a well-stocked liquor cabinet at home, would not bear the impact of this measure.

In states where this argument was presented, advocates successfully countered that the state's Truckers' Association fully supported the measure. Commercial truck drivers have been operating for years under a federal BAC limit of .04, and if they were expected to comply with the .04 limit, then it could be expected that others could accept and comply with an illegal limit of .08.

A similar concern was put forth in one state regarding the impact of the law on minority groups. These concerns disappeared once the legislator had a chance to discuss the issue with a prominent black leader who supported .08 BAC limits.

Congressional programs that award grants to states with .08 per se laws were welcomed by some legislators and shunned by others. One committee chair repeatedly referred to the congressional incentive program as "blackmail." On the other hand, some contacts felt that among the more "budget-conscious" legislators, the availability of federal funds was a contributing factor in their decision to support the measure.

It was reported that there was little that supporters were able to do in order to change the attitudes of legislators who resented any influence of the federal government in state legislative matters. In the states studied, effective lobbyists and .08 supporters anticipated how individual legislators would react to this issue, and accordingly made a conscious decision to either mention or remain quiet on the issue of federal grant money. For the most part, representatives from MADD and legislation sponsors emphasized that they never used financial compensation as an argument in favor of their position; the measure should be passed because it is going to save lives, not because it is going to bring money into the state's treasury.

In October 2000, the Department of Transportation's 2001 Appropriations Act (HR4475) was passed by both chambers of the U.S. Congress and signed by President Clinton. The Act provides that states must pass a .08 per se law by 2004 or begin losing federal highway construction funds. States that do not implement .08 BAC by 2004 will lose 2 percent of their highway money, with the penalty increasing by 2 percent each year, until it reaches 8 percent beginning in FY2007. As a consequence of this legislation, it is foreseeable that, in some states, opposition may mount in response to the mandated nature of this legislation, as much or more than in opposition to the .08 BAC limit itself.

National Highway Traffic Safety Administration (1991). The Effects Following the Implementation of an 0.08 BAC Limit and an Administrative per se Law in California
(DOT HS 807 777). Washington, DC: National Highway Safety Administration.